coons_c_weber_m_eds_paternalism_theory_and_practice

be construed as paternalistic in virtue of their e ects. Although this implication is crucial, the second is even more significant for present purposes. If paternalism is understood as a reason for failing to regard the preference of a person as decisive, disagreements about whether a particular law (or a practice, policy, or institution) is or is not paternalistic seem misguided and futile. Laws do not seem to be the kinds of things that can be paternalistic; only reasons can be paternalistic. Identifying the rationale for a coercive interference in a personal relationship is often straightforward. But (especially in a democracy) an attempt to identify the rationale for a law is notoriously problematic for reasons I need not rehearse here. Still, allegations that a law (or a policy, practice, or institution) is paternalistic are frequently made by philosophers, and should not be dismissed as confusions or category mistakes.

A law is paternalistic, I henceforth will assume, when it is supported primarily by a paternalistic rationale – even though I am not entirely clear about what exactly this means. When the law is supported by a paternalistic rationale, the person subject to it is prevented or discouraged from adopting some course of action on the ground that it would be bad for him. As a rough approximation, the law treats another person paternalistically when it interferes with or reduces his freedom for his own good – to protect or promote his health and safety, economic interest, or moral wellbeing. Of course, some philosophers have established a career by demonstrating that not all examples conform to this paradigm. But these quibbles need not detain us. I see no reason to suppose that there is always a “right answer” to how paternalism should be defined, or how to apply the definition to particular examples. At some point, we have little recourse but to resort to stipulation in e orts to define paternalism, and further disagreements about its exact nature become fruitless. Even though I believe that the nature of paternalism itself becomes unclear as we move from personal relationships into the legal domain, and that it is problematic to claim that laws are the kinds of thing that can be paternalistic, I propose to put such worries aside. I will pretend that we know what paternalism is and that we have a general understanding of whether given laws are paternalistic. With these assumptions in place, I will examine the prospects of justifying paternalism in the penal law in particular.

My central claim is that we cannot hope to justify a paternalistic measure to improve the welfare of individuals without a great deal of information about how these measures are expected to secure compliance. Unfortunately, we do not have a magic wand we can wave to ensure that persons will conform to whatever blueprint the paternalist prepares.

Some persons will resist our suggestions, regardless of how thoughtful or helpful they may be. We must resort to coercion, or to an interference, or to some such device. But what is the nature of this device? A simple nudge may be justifiable to achieve a paternalistic objective when a kick or a push would not. The law may use taxes, licenses, or civil liability. When it resorts to punitive measures, however, I maintain that paternalism will rarely be justified.

I also claim that we cannot decide whether a paternalistic rationale provides a good reason to enact a penal law without having some general view about what would count as a good reason to enact any penal law. We need, in other words, a theory of criminalization. Ideally, such a theory would contain both a positive and a negative part. The positive part would consist in principles that are su cient to justify a given law. Any statute that satisfied these conditions should be included in our criminal code. The negative part would consist in principles that are necessary to justify a given law. Any statute that failed these conditions should be excluded from our criminal code. Undoubtedly there are some areas in which we undercriminalize by failing to punish conduct that should be proscribed. White-collar malfeasance provides a likely source of examples. For the most part, however, I believe our state is guilty of overcriminalization – punishing conduct that does not merit punitive sanctions. Since I believe the latter phenomenon is more pervasive and more objectionable, I have tried to develop the negative part of a theory of criminalization. This part consists in constraints – conditions that all statutes must satisfy before they are enacted and enforced by punitive sanctions. In what follows, I will briefly sketch the constraints in the theory I have defended. Although none of these constraints pertain to paternalism explicitly, several impose obstacles against supposing that paternalistic penal laws can be justified. I am relatively sure that my position is neither dogmatic nor absolutist. As my critics suggest, perhaps a good many more paternalistic laws than I anticipate turn out to satisfy these constraints; some candidates seem far more plausible than others. At the very least, I hope to describe the formidable challenges that must be surmounted if a paternalistic law is justified according to the theory of criminalization I favor.

My theory of criminalization consists in six constraints that must be satisfied before a penal law – any penal law – may be enacted and enforced.6

6I omit a discussion of a seventh constraint – a constraint that imposes the burden of proof on the state to show that the remaining six constraints in my theory of criminalization are satisfied. Since the argument in favor of given instances of penal paternalism is so controversial, the application of this final constraint may be decisive in many cases.

Here is a rough and oversimplified summary. I claim that the first three constraints are internal to the morality of criminal law itself (in the sense that the penal law would clearly be deficient from a moral point of view if these constraints did not apply). First, all criminal laws must be designed to prevent harm. Second, the conduct proscribed by the criminal law must be wrongful. Third, persons must deserve punishment for violating the criminal law. The next three constraints derive from a political theory about the conditions under which taxpaying citizens have good reason to want laws to be enacted and enforced. Fourth, the state must have a substantial interest in proscribing the conduct banned by a criminal law. Fifth, the law must actually promote that state interest. Sixth, the law must be no more extensive than necessary to accomplish its purpose. In what follows, I presuppose rather than defend these six constraints. My aim is to describe the several problems in e orts to show that a given instance of penal paternalism satisfies them. Some of these di culties can be overcome; others are far more problematic. I hope that the absence of a clear verdict on the justifiability of penal paternalism is not too disappointing. A theory of criminalization is corroborated not because it produces straightforward answers to substantive controversies, but rather because it asks the right questions in assessing penal laws. My theory is vindicated if the questions my constraints pose strike philosophers as the appropriate issues that need to be resolved before we can decide whether given instances of penal paternalism are justified.

The first of my six constraints requires that all criminal laws be designed to prevent harm. More specifically, all penal prohibitions must be designed to prevent harm or the unacceptable risk of harm. This latter disjunct is crucial in the context of paternalism. Nearly all paternalistic laws seem intended not to prevent conduct that causes harm on each and every occasion in which it is performed, but rather to prevent conduct that creates the risk of harm. Thus it is crucial to examine the special principles that apply to laws designed to prevent risk. Before turning to these principles, however, it is important to ensure that a harm constraint is not vacuous – contrary to what some critics have alleged. A harm constraint requires us to cite some untoward consequence a statute is designed to prevent before we allow criminalization. This constraint rules out pure legal moralism, and that implication is not trivial. The two most distinguished living theorists of the criminal law in the Anglo world – Michael Moore and Antony Du – each defend di erent versions of legal moralism. They di er from the old legal

moralists primarily in adopting a more enlightened sense of morality – probably like that of most contemporary philosophers.

As I have indicated, special principles must be satisfied before the state is justified in proscribing conduct on the ground that it risks harm to oneself. Four such principles (some of which are partially redundant with others in my theory of criminalization) are as follows. First, conduct may not be punished because it creates a risk of harm unless that risk is substantial and unjustifiable. Second, the proscription must actually help to prevent the harm, that is, reduce it below its level in the absence of the proscription. Third, conduct should not be proscribed because it causes a risk of harm unless conduct that causes that very harm deliberately and directly should be proscribed as well. Finally, persons should not be punished unless they have some degree of culpability – probably recklessness but possibly negligence – with respect to the harm to be prevented. The application of each of these principles jeopardizes a great deal of penal legislation seemingly defended by a paternalistic rationale.

In particular, I have sought to show how at least the first three of these principles almost certainly refute a paternalistic defense of drug proscriptions – my favorite example of overcriminalization. Briefly, the risks one incurs to oneself by using illicit drugs rarely rise to the threshold where they should be considered to be substantial – even though reasonable minds di er about where this threshold is located. More controversially, informed individuals may be justified in taking these risks, inasmuch as they arise in the course of recreational activities persons regard as valuable. Moreover, drug proscriptions have proved notoriously ine ective and even counterproductive in preventing these risks. Finally, some of the harms risked are not the legitimate objects of penal proscriptions even when caused deliberately and directly. One cannot argue, for example, that a person should be punished for ingesting a substance that increases the risk that he will become unmotivated and unproductive unless the deliberate choice to become unmotivated and unproductive should be punished as well – a position no sensible person accepts. Since I have made these arguments before at great length, I will not further elaborate on them here.7 I briefly summarize them only to provide a specific context in which a paternalistic rationale in the criminal domain is objectionable.

7Husak, “Recreational Drugs and Paternalism”; Husak, Drugs and Rights; Husak, Legalize This!. Also, Husak and de Marne e, The Legalization of Drugs.

What might be said about the harm constraint generally that is relevant to questions about the justification of penal paternalism? Notice that I do not stipulate that harm must be caused or risked to others. This stipulation, of course, would rule out the acceptability of paternalism at the outset. Is there a good reason why the unwanted injuries a person causes to himself should not count as harmful? Why should we not regard a driver as harmed when he accidentally fractures his skull against a windshield because he failed to fasten his seatbelt? Perhaps the exclusion of harm to self may follow from the very meaning of harm. Clearly, a substantive conception of harm is needed in order to give content to the harm constraint and rescue it from the charge of triviality that is frequently brought against it. If Joel Feinberg is correct to suggest that harm involves a violation of rights,8 the case against paternalism becomes more plausible. Can a person violate his own rights when he accidentally injures himself? Few theories of rights countenance rights against oneself. The legislator who accepts a paternalist rationale for a penal law must either (1) reject the harm constraint; (2) contend that harm is not a rights violation; and/or (3) allow that one can violate one’s own rights by harming oneself. None of these options is attractive, but I do not rule out the possibility that one or more might be defensible.

Frankly, I think we should acknowledge that one can harm oneself. This concession follows from the argument I provide in favor of the harm constraint. Mill and Feinberg presented several objections to paternalism – most of them bad or at least inconclusive. But what were their arguments in favor of a harm constraint?9 I hope it is not unkind to these great thinkers to answer that no positive arguments can be found. I try to fill this lacuna by o ering the following novel argument for a harm constraint: All crimes allow for defenses. Among the defenses for which they allow are justifications. The broadest justification is called “justification generally,” or “choice of evils,” or “necessity.” Very roughly, persons have this defense when they would have caused more harm by following the law than by breaking it. Thus we are permitted to violate a speed limit to rush an injured victim to a hospital. This defense presupposes that the o ense a person commits when he alleges his justification is designed to avert harm.

8Feinberg, Harm to Others.

9I speak of a harm constraint rather than of a harm principle. Joel Feinberg’s formulation of the harm principle simply specifies that the prevention of harm to others provides a good reason in favor of criminalization. As so construed, such a principle seems virtually impossible to reject. A harm constraint, on the other hand, is more substantive and thus more controversial. A good many legal philosophers reject it.

Otherwise, it is hard to see how anyone could begin to decide whether more or less harm would be caused by following the law or by breaking it. As long as we have a system of criminal law that contrasts o enses from defenses, and every crime allows a defense of lesser evils, we must suppose that every o ense is designed to avert harm. Or so I argue.

For present purposes, the important point is that the foregoing argument suggests that harm to oneself is possible. Surely the avoidance of an unwanted injury to oneself can count as a legitimate reason to break a law under the defense of necessity. That is, an injured person may be justified in violating a speed limit to rush himself to the hospital. If so, the consequences to oneself must count as a harm for purposes of the criminal law – a consequence capable of outweighing the harm that would be caused if the law were obeyed. If we accept this position, however, it becomes di cult to contend that harm consists in a violation of rights – unless one can violate one’s own rights by harming oneself, which strikes me as extraordinarily peculiar (although not incoherent). Thus if harm to oneself is possible, theorists should be drawn to an account of harm that is not conceptually tied to rights. Unfortunately, I have no such account to o er.

The second of my constraints is equally di cult to apply to paternalistic penal legislation. I believe that conduct must be wrongful before it may be punished. My argument for this constraint is far less clever or original than my argument for a harm constraint, and does not seem to involve any special problems for paternalism. Everyone agrees that punishments must be justified, and it is hard to see how a punishment can be justified unless the person on whom it is imposed has done something wrongful. Suppose someone asserts that a person is justifiably punished notwithstanding his admission that the conduct for which he is punished is permissible. I am not sure whether this assertion betrays a conceptual or a normative confusion, but it is confused nonetheless. What are the implications for justifying paternalism? Does a person behave wrongfully in harming himself (supposing an unwanted injury to oneself can qualify as a harm)? Again, reasonable minds di er about the answer. When people act foolishly and injure themselves, we frequently subject them to criticism. They are stupid, impulsive, careless, and the like. But have they acted wrongfully? Here, as elsewhere, the distinction between moral criticism and other normative criticism is vague and elusive. But unless we are prepared to argue that the conduct prohibited by a paternalistic rationale is wrongful – or we reject the wrongfulness constraint altogether – the case for penal paternalism collapses.

own foolishness by enacting a criminal statute to punish boxers? My answer is simple. A criminal law merely proscribes behavior, but cannot always prevent it. In a world of perfect compliance, no instances of the proscribed activity would occur. Perfect compliance, of course, is unrealistic. The threat of criminal punishment may reduce the incidence of the activity, but some persons will persist in boxing, whatever the law may say. Moreover, they are more likely to engage in a mode of boxing outside the glare of regulations that would enhance their safety. Suppose Bill is one such person. What should be done to Bill if he is detected? Presumably, Bill becomes subject to punishment, unless the state does not mean what it says in classifying the statute as criminal.

How might Bill’s punishment be justified? Two answers might be given. First, Bill’s punishment might be justified in order to preserve whatever e cacy the criminal law has as a deterrent. But punishing Bill in order to deter others from following his foolish example can hardly be thought to promote the interests of Bill himself. That is, the state is not justified in treating Bill paternalistically when he is punished to deter others. If the law purports to be justified in treating Bill paternalistically, punishment must be thought to be in his interest – which is the second possible answer to the question of how his punishment might be justified. This second answer, however, seems implausible. How can punishment be in Bill’s interest? Is Bill really better o if he is punished than if he is free to box? The answer probably depends on further details about how he is punished. Imagine that Bill is made to pay a fine. The di culty, of course, is that he may continue to box even though he pays the fine, treating it as a cost of engaging in his preferred activity. Suppose, then, that Bill is punished more severely. After his nth o ense, he is imprisoned. Even if this sentence has a greater probability of successfully preventing him from continuing to box – which I strongly doubt – it is hard to believe that imprisonment is really in Bill’s interest. Can a legislator think that Bill is actually better o not boxing in jail than boxing out of jail? If the answer to this question is negative, an application of my fifth constraint shows Bill’s punishment is not justified paternalistically.

Let me elaborate. Surely the normative standards that justify paternalism in the penal law are not lower than those that justify paternalism in a personal relation. Suppose we are able to quantify the degree of disutility, hardship, or deprivation of the punishment the state must impose upon Bill in order to induce him not to box. Let us call this quantum of disutility, hardship, or deprivation P. Now let us suppose that Bill is my brother or friend. I know that Bill would be better o if he stops boxing